McMaster v Antrim Borough Council
Mr McMaster was employed as a driver for Antrim Borough Council’s recycling service. It was made clear to him during training that the removal of waste for payment constituted gross misconduct. He was not permitted to remove waste from the council’s premises. Mr McMaster was caught taking home some plastic pipe and, following an investigation and disciplinary hearing, he was dismissed for gross misconduct on 5 June 2007.
Mr McMaster’s dismissal was upheld on appeal. The council’s contractual disciplinary procedure provided for an additional appeal to the Labour Relations Agency (LRA) in dismissal cases. Mr McMaster lodged an appeal with the LRA on 28 June 2007, but the hearing did not take place until January 2008.
The LRA informed the council on 4 March 2008 that Mr McMaster had committed gross misconduct, but that a lesser penalty would have been appropriate. The council refused to implement the LRA’s determination.
On 3 April 2008, Mr McMaster lodged a grievance and on 4 April, 8 May and 2 November 2008, he lodged tribunal claims alleging unfair dismissal and unlawful deduction from wages.
The employment tribunal held that the effective date of termination was 5 June 2007 and that the right of appeal did not suspend the dismissal. Therefore, Mr McMaster’s claims were out of time.
Mr McMaster appealed to the Court of Appeal. It considered whether or not, in the absence of any relevant contractual provision providing for suspension of dismissal and/or temporary continuation of the contract, the effect of a successful resort by a claimant to a contractual appeal procedure can, of itself, revive the contract of employment.
The Court of Appeal allowed the appeal. It considered that the fundamental purpose served by an agreed appeal disciplinary procedure is to ensure that both sides have a full and fair opportunity to put their respective cases and secure a just outcome to any dispute, including putting right, where necessary, any errors or shortcomings in the initial hearing. Mr McMaster had a contractual right of appeal and the contract specifically provided that the decision of the LRA would be final and binding on both parties.
The legal result of Mr McMaster’s successful appeal is that the contract must be regarded as being reinstated at the date of the successful appeal. The refusal by the council to accept the contractually binding result of the appeal could be regarded as a repudiatory breach of contract giving rise to a claim for wrongful dismissal. The claim was not out of time.
This is a case from Northern Ireland. The facts of this case are unusual as the disciplinary procedure provided for a right of appeal to an external agency. However, there seems no reason why the principle involved could not apply to any contractual disciplinary procedure.
Where the decision to uphold the appeal and reinstate is made by the employer rather than by an outside agency, unfair dismissal will no longer be an issue, but the employee will have a claim for unpaid wages between the date of the original decision and the date of reinstatement.
There is already clear case law to the effect that if a contractual right of appeal is unsuccessful, the date of termination will be the original date and not the date of the appeal decision.
Employees take a significant risk by not lodging a claim within three months of the original dismissal, as they are in effect gambling on the outcome of the appeal. Employees on fixed-term contracts face a further dilemma: where the appeal is successful and reinstates the fixed-term contract, but after the date on which the contract in any event expired, a claim presented between the dismissal and the appeal will be out of time as it is premature. However, the employee can amend the claim after the expiry of the fixed term.
Guy Lamb, partner, DLA Piper
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